Opinion
Ind. No. 75688-2022
03-30-2023
The People of the State of New York, v. Lance Dunkley, Defendant.
For the People: Assistant District Attorney Maria Luna, Of Counsel New York County District Attorney's Office For the Defendant: Allen Farbman, The Legal Aid Society Kirk Stadnika, The Legal Aid Society
For the People: Assistant District Attorney Maria Luna, Of Counsel
New York County District Attorney's Office
For the Defendant: Allen Farbman, The Legal Aid Society
Kirk Stadnika, The Legal Aid Society
Althea E.M. Drysdale, J.
The motion to inspect the Grand Jury minutes is granted. Upon inspection of the Grand Jury minutes the motion to dismiss the indictment or reduce the crimes charged therein is denied. The evidence presented to the Grand Jury established a prima facie case of the defendant's commission of the crimes charged in the indictment.
The Defendant moves to dismiss Count 1 of the indictment, Sexual Abuse in the First Degree, PL §130.65(3) and Count 3 of the indictment, Sexual Abuse in the Third Degree, PL §130.55, arguing that contact between the Defendant's lips and the feet of both child victims does not constitute sexual contact with an "intimate part" of the body for the purposes intended by the statute. As a threshold matter, the common-law policy of strictly construing a statute is no longer applicable in New York State, instead, Courts are urged to interpret statutes "according to the fair import of their terms to promote justice and effect the objects of the law." People v. Ditta, 52 N.Y.2d 657, 660 (NY Ct. App. 1981) quoting PL, § 5.00. Therefore, Courts may dispense with "hypertechnical or strained interpretations of the statute" and "conduct that falls within the plain, natural meaning of the language of a Penal Law provision may be punished as criminal." Id. When determining whether a complainant has been subjected to sexual contact of an "intimate part," the Court may take into consideration "the manner and circumstances of the touching." People v. Sene, 66 A.D.3d 427, 427-28 (1st Dept. 2009), see also People v Graydon, 129 Misc.2d 265, 268 (Crim. Ct. NY County, 1985) (Employing a three-part analysis when determining whether a part of the body is considered intimate: (1) what area of the body is touched, (2) the manner of the touching, and (3) the circumstances under which the touching took place).
"The abuse of one's body and privacy with the intention to obtain sexual gratification on the part of the abuser is sufficient to constitute sexual abuse. [ ] There is no requirement that erogenous zones of the victim be touched or manipulated by the aggressor. Matter of David M., 93 Misc.2d 545, 548-49 (Bronx Fam. Ct. 1978). Courts have routinely found that zones of the body generally considered non-erogenous in nature constitute "intimate parts" given the circumstances surrounding their contact. For example, necks, navels, ankles, and legs have all been deemed to be "intimate parts" of the body. In fact, this Court has previously ruled that a complainant's stomach constituted an "intimate part" of the body based on the circumstances surrounding the contact.
People v. Sene, 66 A.D.3d 427 (1st Dept. 2009) ("We conclude that, under general societal norms, the neck qualifies as an intimate part because it is sufficiently personal or private that it would not be touched in the absence of a close relationship between the parties.")
People v. Belfrom, 124 Misc.2d 185, 189 (Sup. Ct., Crim. Term, Queens Co., 1984) (Finding that the defendant's navel constituted an "intimate part" when the defendant forcibly gained access to the complainant's home through a basement window and forcefully compelled the complainant to manipulate the defendant's navel with her fingers.)
People v. Omar Flores, Dkt. No. CR-019486-19NY (Sup. Ct. NY Co., September 5, 2019) (Swern, J.) (Finding that the complainant's lower leg and ankle constituted "intimate parts" when the defendant approached the complainant while she was asleep on the subway and proceeded to rub her lower leg and ankle while masturbating.)
People v. Graydon, 129 Misc.2d 265 (Crim. Ct. NY Co. 1985) (Finding that a leg constituted an "intimate part" when the defendant intentionally and repeatedly rubbed his hand on an eleven-year-old child's leg after being instructed not to do so.); see also People v. Gray, 201 A.D.2d 961, 962 (4th Dept. 1994) (Finding that defendant moving his hand beneath the complainant's underwear, towards her pelvic area and eventually touching her upper leg constituted "intimate contact.")
People v. Carlos Ramos, IND-75265-2022 (Sup. Ct. Crim. Term, NY Co., February 28, 2023) (Finding that a stomach constituted an "intimate part" when the defendant pinned the complainant against a building and reached his hands underneath the complainant's shirt in the direction of her breasts, stopping only when the complainant managed to escape the defendant's grasp.)
Here, the Defendant is accused of unprovokedly approaching a fourteen-year-old complainant at a church social event by pretending to trip to the floor, thus making his head level with the child's bare foot. The Defendant, a stranger to the child, allegedly proceeded to grab the child's foot with his hand, and state in substance "cute little feet" while he pressed his lips to the inside bottom arch of the child's foot.
In a second instance, the Defendant is accused of unprovokedly approaching a nine-year-old child at a social event at the same church, removing the child's shoe, and placing the child's bare foot on his lap. The Defendant then allegedly commented that the child's foot was "sweaty" and needed to be "aired out" and proceeded to kiss the bottom of the child's foot "more than eight times" while making a moaning noise. The Defendant only ceased kissing the child's foot when he was approached by another adult who observed the Defendant's odd behavior and noticed that the child appeared visibly uncomfortable.
In determining whether the children's feet constitute "intimate parts" of the body, this Court will follow the rubrics employed in Sene and Grayson, supra, and take into consideration (1) what area of the body is touched, (2) the manner of the touching, and (3) the circumstances under which the touching took place.
First, the Defendant touched the bare feet of a nine-year-old child and a fourteen-year-old child. Second, the Defendant repeatedly pressed his lips to the bottoms of the children's feet to kiss them. Third, the Defendant appears to have taken steps to conceal his behavior: in one instance entering a room full of children and seemingly void of adults, and in the other instance saying "whoops" and pretending to trip and fall to the floor so that his mouth was level with the child's foot. The Defendant further made comments such as "cute little feet" to the fourteen-year-old child and appeared to be moaning while he repeatedly kissed the feet of the nine-year-old child. This Court will also consider the young age of the children compared the age of this adult Defendant, as well as the fact that the Defendant's actions towards the children, who were complete strangers to him, fly in the face of societal norms. Considering the totality of the circumstances, the children's feet clearly constitute "intimate parts" of their bodies. For these reasons, the Defendant's motion to dismiss Count 1 and Count 3 is denied.
The motion to dismiss the indictment on the grounds that the Grand Jury proceeding was defective within the meaning of Criminal Procedure Law ("CPL") §210.35 is denied. The Defendant has not provided the Court with any evidence of a defect in the Grand Jury proceedings nor do the Grand Jury minutes reflect any such defect. The application for the release of the Grand Jury minutes is denied.
The Defendant's request for a Bill of Particulars is denied. The Automatic Discovery Form previously filed in this case provides all the particulars to which the Defendant is entitled. See CPL § 200.95.
The Defendant's request for a Huntley/Dunaway hearing is granted as to both statements.
The Defendant's request for a Wade hearing is granted as to the three photo array identifications.
As to any outstanding discovery sought by the Defense, the People are ordered to turn over any outstanding discovery outlined in CPL § 245.20 that is not subject to delayed disclosure within 15 days of the issuance of this order.
The Defendant's request that the People be required to file an additional Certificate of Compliance pursuant to CPL § 245.35(3) is denied, as the Defendant has not alleged any particular action by the People that would demonstrate a need for an additional Certificate of Compliance.
The Defendant's request to preclude unnoticed statement and identification evidence is granted to the extent that there exists any unnoticed statements or identifications which would be subject to the requirements of C.P.L. §710.30.
The People are reminded to adhere to their Brady/Vilardi obligations.
The Defendant's request for a Sandoval hearing is granted and the hearing is deferred to the trial Court.
This constitutes the Decision and Order of the Court.